Defence mitigating circumstances

claxtome

I do not see the point in paras 3-7... You do not need to restate points already made in your defence and/or WS

Lamilad I expect she copied the approach from my skeleton.
I personally see the advantage of summarising the main defensive arguments in a skeleton.

Lamilad

I personally see the advantage of summarising the main defensive arguments in a skeleton.

There is no advantage to stating irrelevant/ repetitive information in court documents. It will not endear the party to the judge.

claxtome

Taken from the NEWBIES sticky written by one of our 2 legally trained helpers Loadsofchildren123 about Skeleton Arguments

.. simply summarises your case, your defence and your factual evidence. The aim of the document is to replace your oral submissions on the day (so you say to the judge that you are relying on what's in your skeleton and ask him if he wants you to add anything, and he may well say no - the only thing you then need to speak about is rebutting any points the Claimant has made on the day, unless these are dealt with in your Skeleton - it is best to point the judge to your strongest arguments and to make sure he understands them). If there's anything you forgot in your original defence, now is the time to put it into the Skeleton, but the court has a discretion to say that you didn't put that in your defence, you can't get it in now through the back door.

Re-reading what OP has put for 3-7 I suggest the following amendments. Bear in mind it assumes the photo is dated from a different day or less helpfully if it is not dated (very important if it is):

Defendants Arguments

3) The defendants primary defence is the vehicle XXXX was not present at XXXXX on the date of Xxxxx as per the Particulars Of Claim and Notice to Keeper, see pp of [Claimant's evidence or Defendant's evidence]. The photograph in the Claimant's evidence is not for the day in question but was taken on Yyyyy.

4. There has been no evidence produced by the Claimant which shows the vehicle in the car park on Xxxxx so there is no case to answer.

[STRIKE]4)[/STRIKE] 5) On Yyyyy, a different day to the offence, [STRIKE]The date of Xxxxx [/STRIKE]the defendant's daughter required urgent medical attention at hospital and was in distress and pain. The defendant parked in a layby which for all intents and purposes appeared to be a public road with residential homes.

[STRIKE]5) The defendant received a penalty notice letter which had all the hallmarks of scam/junk mail as no parking charge notice was served on the material day.

6) Several letters were sent to the defendant which stated the date the vehicle was parked at Xxx was Xxx with increasing demands of money.[/STRIKE]

[STRIKE]7)[/STRIKE]6) If indeed the car was in the car park on the XXXX, for the record it wasn't, the signage is inadequate [STRIKE]at Xxxxx [/STRIKE]and [STRIKE]are[/STRIKE] placed in such a position the [STRIKE]driver[/STRIKE] driver of the vehicle is unable to see them clearly upon entering the site. A breach of IPC Code of Practice XX.YY

Lamilad

The SA should contain a brief summary of the defendant's case with emphasis on the strongest arguments. But that does not mean it should just repeat points from the defence or WS.

As LoC states "The aim of the document is to replace your oral submissions on the day"... So if you've stated the claimant has not complied with PoFA 9.2(a)(b)(e) and (f) then you would not just repeat this statement when asked about it in court. You would explain it in a way that supports your case and convinces the judge - and that's what your SA should do... expand the point (as you have above), refer to evidence with it, or rebut the claimant's case.

If there's one thing I see irk a judge, more than anything, it's making them wade through irrelevant waffle to get to the pertinent detail. Conversely, they are grateful with things are made easy, clear and concise for them.

Lord Justice Jackson said in 2014:
"A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments."

and in PCM vs Bull Judge Glen commented:
"[FONT=&quot]The claimant in this case has been represented by Mr Samuels of counsel and I am grateful to him for both his succinct skeleton argument and his succinct submissions on the points at issue which[/FONT][FONT=&quot] I will identify in a moment. Mr Carrod has come to represent the defendants. I have allowed him to speak on their behalf and he has done so again with economy and clarity and I am grateful to him also for his skeleton argument on the points in issue"[/FONT]

Staceyplindfield

Final draft?!!



Defendant Skeleton Argument

Preamble

1) This skeleton argument is to assist the court in the above matter for the hearing dated XXXX.

2) The defendant is unrepresented with no court experience, if I do not set out arguments in the way the Claimant may do, I trust the court will excuse my inexperience.

Defendants Arguments

3) The defendants primary defence is the vehicle XXXX was not present at Xxxxx on the date of Xxxxx as per the Particulars Of Claim and Notice to Keeper, (Claimants witness statement page 9/11) The photograph in the claimant's evidence is not for the day in question but was taken on xxxx

4) There has been no evidence produced by the claimant which shows the vehicle was parked on the xxxx so there is no case to answer.

5) On Xxxxx, a different day to the alleged parking event according to the Particulars of Claim, the Defendant's daughter required urgent medical attention at hospital and was in distress and pain. The Defendant parked in a unmarked, unrestricted layby, which for all intents and purposes appeared to be a public road with residential homes; this is the only parking event the Defendant recalls at this location; there where no clear signs and no contract was agreed, and the date doesn't match the Particulars of Claim.

6) If indeed the car was parked at xxxx on xxxx, (for the record it was not, so this is clearly denied and the Claimant is put to strict proof) the signs are inadequate and are placed in such a position the driver of the vehicle is unable to see them clearly upon entering the site. A breach of The IPC code of practice (part E schedule 1)


Rebutting Claimant Evidence and Arguments.

7) The Claimants witness statement states 'the facts and matters set out in this statement are within my own knowledge unless otherwise stated'

This is untrue as Xxxxx was not present and not a witness on the day.

8) The claimant states that a 'minor error on the letter before claim is irrelevant' due to the date of charge showing Xxxxxx. However the vehicle was not present on this date and dates are fundamental details regarding parking events and these details have been repeatedly incorrect on several occasions. (Claimants witness statement page 13, Defendants witness statement exhibit 7/11).

9) I respond to the Claimant that the Particulars of Claim are incorrect and not concise as required by Code Of Practice 16.4 (attached exhibit A).

i) The Claimant has not been concise on the facts as the date given on the Particulars of Claim are incorrect as the vehicle was not present at XXXX on this date.

ii) This Claim appears to fall within rule 3.4(2), and despite being brought by a firm of solicitors, discloses no cause of action relating to the 'date of alleged contract' stated.

ii) The practice direction at 1.4 gives examples of cases where the court may conclude that Particuars of Claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a).
1) Those which set out no facts indicating what the claim is about , for example 'money owed £5000',
2) Those which are incoherent and make no sense,
3) Those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

As such the claim has no prospect of succeeding , and the flawed Particulars disclose no regard to the facts. The date is not a 'minor error', has disadvantaged the Defendant in making an informed defence, and to allow the Claimant to continue to a hearing with such flawed Particulars will obstruct the just disposal of the proceedings.

iii) Rule 24.2 enables the court to give summary judgement against a claimant where the party has no real prospect of succeeding on his claim. Both those powers may be exercised on the court's own initiative and the Defendant asks that the court use inherent case management powers to that effect.


10) No authority to enforce charges.


11) The Claimant relies on the Court of Appeal case of Vehicle Control v Her Majesty's Revenue & Customs (2013) EWCA 186 and Parking Eye v Beavis (CA 2015) as establishing a precedent that the present Claimant can bring proceedings in its own name (witness statement 17-24 exhibit 20) (Claimant's statement para 5).

a. The Defendant asserts that the facts of VCS v HMRC were substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

i. The VCS v HMRC case was primarily concerned with VAT liabilities, and the question of whether VCS’s charges should be considered a charge for a service, and therefore subject to VAT. It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with VCS were materially different from the present case. In VCS v HMRC, the landholder appointed VCS to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from VCS outlining its conditions of use.

ii. It was held, at para. 27, that “ ... in my judgment the significance of that is that in effect VCS promised to contract with persons nominated by the landowner. It does not make the contracts “contracts entered into as agent for the landowner”. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between VCS and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a VCS permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between VCS and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

iii. It is clear from this that VCS were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

b. Also, in VCS v HMRC it was held that any fines were for 'damages' or 'trespass' neither of which are able to be recovered by a parking firm not in possession. Only a landowner can pursue a driver for damages or under tort (trespass). Not even ParkingEye in the Beavis case tried to argue 'damages' and the Judges there said:

i. “97. ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.”

ii. Lord Mance at 190: “Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.”

iii. and later:‘’ But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

Contract

12) The Claimant has not provided the full contract between themselves and landowner as this should be read in conjunction with the "service proposal".

i) The authorisation form only allows Uk Car Park Management to provide enforcement and does not allow Uk Car Park Management to offer parking.

ii) The contract does not allow Uk Car Park Management to issue court proceedings.

iii) The contract submitted is dated 2014.

Signage

13) The Claimant relies on Vine v London Borough of Waltham Forrest (2000) that once it is established that sufficient and adequate warning notices were in place, a car driver can not be heard to say "that he or she did not see the notice"

a) The Defendant refutes this as there was no distinct signage/contract terms. The defendant cannot be deemed to have agreed to any terms of parking specific to the Claimant (i.e. distinguishing Vine v London Bor. of Waltham because the Claimant's signs (if any) were neither sufficient in number or sufficiently distinct from those complied with).

b) Under Lord Denning's Red, Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have bee not effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with their terms in large lettering, as was found to be the case in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, , on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a requirement for transparency.

1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing is transparent.
2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the pursuasive case law is in fact 'Vine v London Borough of Waltham Forest (2000) EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them. This judgement is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (I who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'Private Land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a drivers seat before parking.


14) The claimants have provided a picture of the signage (claimants witness statement page 7), however this is different signage to the defendants (defendants witness statement exhibit 15)

i) The signs are different locations within Xxxxxx

ii) The signage photo provided by Claimant is dated XXXX and is before the parking charge occurred.

iii) The claimant states the content of the sign has been audited by the International Parking Community , however the signage shows that a 'valid tax date must be clearly displayed'
Tax discs have not been required as a legalisation since 01st October 2014, I put it to strict proof of when the signs were audited.

iiii) The signage is not prominent and no contract is offered.

iiii) Signage at the entrance of Xxxxx is placed high on a post and not lit. (Defendants witness statement exhibit 17)

v) No signs are within the drivers eyeline and are placed on the side of a brick wall, that you would only see if the motorist was looking left/right when passing the post within that moment.

The defendant invites the court to dismiss the claim.

Coupon-mad

Do I send cost sheet with this or take on day please?

Submit your costs schedule with the SA, or a couple of days before the hearing (not just taking it on the day).

I suggest some changes here, in particular, remember this was never an 'offence' (criminal matter!):

5) On xxxx, a different day to [STRIKE]the offence[/STRIKE] the alleged parking event according to the Particulars of Claim, the Defendant's daughter required urgent medical attention at hospital and was in distress and pain. The Defendant parked in an unmarked, unrestricted layby which for all intents and purposes appeared to be a public road with residential homes; this is the only parking event the Defendant recalls at this location; there were no clear signs and no contract was agreed, and the date does not match the Particulars of Claim.

6) If indeed the car was parked at xxxx on xxxx, (for the record it was not, so this is clearly denied and the Claimant is put to strict proof) the [STRIKE]signage is[/STRIKE] signs are inadequate and are placed in such a position the driver of the vehicle is unable to see them clearly upon entering the site. A breach of the IPC code of practice.

8) The claimant states that a 'minor error on the letter before claim is irrelevant' due to the date of charge showing xxxxx. However the vehicle was not present on this date and dates are fundamental details regarding parking events and these details have been repeatedly [STRIKE]countinously been[/STRIKE] incorrect on several letters [STRIKE]correspondence[/STRIKE] received from the Claimants (exhibit 7,11 [STRIKE]defendants[/STRIKE] Claimant's witness statement)

Change:

9) ii) There is no disclosed legal recognisable claim against the defendant as required by the Claimants trade Associations code of practice.

to:

9) ii) This Claim appears to fall within rule 3.4(2), and despite being brought by a firm of solicitors, discloses no cause of action relating to the 'date of alleged contract' stated.

ii) The Practice Direction at 1.4 gives examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a).
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

As such, the claim has no real prospect of succeeding, and the flawed Particulars disclose no regard to the facts. The date is not a 'minor error', has disadvantaged the Defendant in making an informed defence, and to allow the Claimant to continue to a hearing with such flawed Particulars will obstruct the just disposal of the proceedings.

iii) Rule 24.2 enables the court to give summary judgment against a claimant where that party has no real prospect of succeeding on his claim. Both those powers may be exercised on the court’s own initiative and the Defendant asks that the court use its inherent case management powers to that effect.

Also you have 'Uk Car Parking Management'. Twice. AFAIK, there is no such firm. No 'ing'.

And the Vine case isn't how they painted it, here's something I wrote in another case about Vine, which also brings in the 'red hand rule' about onerous terms on a contractual notice:

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this!carpark and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the!car!park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':!

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case.

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

claxtome

Aren't UK CPM AOS members of IPC not BPA?
If so 6 should refer to the IPC Code of Practice section XX.YY instead

Coupon-mad

Yes, good spot!

I have edited my edit of #6.

Staceyplindfield

I have edited the above skeleton to include all of coupon mad points, please advise if ok to go? (When I'm at work tomorrow I will complete date and grammar and send tomorrow 1st class post)

Also in my witness statement I had included the bpa code of practice (as I thought they ukpm were part of that?- on the signs?) however the edits I have been advised state Ipc, in which I have not included - can I assume I can print this copy and attach to skeleton? Also would I attach the consumer act now as this has been mentioned? (Only the relevant pages/sections).

nosferatu1001

"iii) The contract submitted is dated 2014."

This doesnt appear to add - are you drawing any conclusions on this date, for example it is dated 2014 for a period of X, the alleged parking event occurred on Y or alternatively Z which is after the contract expires

No, IPC CODE OF PRACTICE - BPA rectangle is meaningless, thats NOT the membership that matters. ROUND membership is what matters, and thats IPC

You should not need to include law, but I would add in the CRA sections for reference. It is neater that way. Why are you attaching evidence to the skeleton - was this not attached to your witness statement already>

Remember you submit to court AND to the claimant